Family sues to get marijuana extracts for 5-year-old son

PHOENIX -- Saying their 5-year-old child's life may depend on it, a Mesa couple has sued to demand legal access to extracts of marijuana for him.

Jacob and Jennifer Welton said the only thing that has helped control "numerous active seizures' in the child who has birth defects that have affected development of his brain has been a mixture of chemicals from marijuana made in part from a hemp extract. They also said the drug combination they were using also has aided in addressing Zander's autism and physical development.

But a conclusion by state Health Director Will Humble that extracts may be illegal under the 2010 Arizona Medical Marijuana Act, coupled with similar decisions by prosecutors and threats of police action, have made that extract unavailable for Zander even though he has a state-issued card entitling his parents to obtain medical marijuana for him.

That has left the couple trying to feed Zander dried marijuana leaves, which they can still legally obtain, crushing it up into the child's food. But his father said that's not a real option.

"It's a real fibrous material,' he said. "That's kind of like taking hay and chopping it up into applesauce to him.'

And Zander, being a 5 year old, figures out quickly what he doesn't want.

"He starts to filter it through his teeth,' his father said.

His mother said other forms of administration, like smoking or even creating a tea, are unacceptable, at least in part because heating the plant releases the psychoactive properties of marijuana that would make the child "high.'

"That's the part that we're trying to stay away from,' she said.

So they want Maricopa County Superior Court Judge Katherine Cooper to rule that the 2010 voter-approved law does allow patients like Zander, who has a doctor's recommendation and a state-issued card to use the drug, to obtain it in extract form.

The ultimate outcome of the case is likely to have implications far beyond Zander.

Both Maricopa and Pima County prosecutors take the position that dispensaries that sell extracts -- and patients that either use or make them -- are breaking the law. It is likely to take a ruling by the Arizona Supreme Court to resolve the issue.

In fact, the legal is so complex that Amelia Cramer, the chief deputy Pima County attorney, said Tuesday that patients who make a tea out of the marijuana leaves they legally acquire may be creating an "extract' -- and can be prosecuted.

But attorney Emma Andersson of the American Civil Liberties Union, said the prosecutors are off base.

"The Arizona Medical Marijuana Act, both the text and the intent, are clear that patients like Zander should be getting the best medicine possible for them,' she said.

Humble acknowledges that the 2010 law clearly makes food products made from marijuana legal. There is no requirement that the plant be smoked or eaten.

But Humble said that, strictly speaking, the law legalizes only "usable marijuana.' He said that requires any food products to contain actual pieces of marijuana.

More to the point, anything without the pieces is an extract. And that, he said, remains a felony.

That's the position of not only Maricopa County Attorney Bill Montgomery but also the Phoenix Police Department. And Andersson said that, in turn, has made it impossible for the couple to purchase the hemp oil they had been using before.

She said this is more than an issue of convenience and palatability. It goes to the numerous chemicals in the marijuana plant.

Andersson said it appears the best medication for Zander is a combination that is very high in cannabidiol and very low in tetrahydrocannabinol, in a ratio of 20 to 1, a combination the family first found by watching a report by CNN medical expert Sanjay Gupta.

The former is found in a hemp extract, typically called CBD oil. The latter contains the psychoactive elements of marijuana that provide the high.

"The neurologist told them that there was nothing else left for Zander to try if they did not want him to undergo the proposed third brain surgery,' Andersson told the court. And the couple even consulted with a family friend, a bishop in their Mormon Church, who cited Mormon scripture in saying the church would approve giving the child marijuana for medical purposes.

The results, according to the lawsuit, go beyond a decrease in Zander's seizures.

"He is showing signs of wanting emotional stimulation and notices that people are people, not inanimate objects,' the lawsuit states.

"Zander is seeking physical attention from his parents when he wants comfort or love,' the legal papers continue. "He actively tries to play with his brothers and recognizes his parents' laughter and responds with his own laughter.'

His physical development also has improved, with Zander now able to walk backwards, avoid objects when walking and is nearly able to run.

Neither Humble nor Montgomery would comment about the lawsuit.

Cramer, however, said there may be other legal options for the parents.

For example, she said, the federal government already allows doctors to prescribe Marinol. The maker of this synthetic drug says it is commonly used for loss of appetite associated with weight loss in patients with AIDS.

Andersson, however, said Marinol is high in THC.

"That's actually not the type of marijuana that is helpful to Zander,' she said. "Zander needs to have an extract that is high is CBDs, which is different.'

There is another option: Ask lawmakers to alter the statute. While the measure was approved by voters and is off-limits to legislative repeal, it can be amended, with a three-fourths vote, to "further the purpose' of the underlying measure.

That is exactly what happened earlier this year when legislators agreed to alter the law to allow marijuana onto college campuses, at least for the purposes of clinical trials.

Andersson, however, that should not be necessary. She said the law already contemplates -- and allows -- for extracts that are made into oils and food products, a point with which she hopes a judge will agree.

Cramer said her office has not yet had any cases where anyone caught with hashish, essentially the resin from marijuana, has claimed legal protection under the 2010 law.

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